Ninth Circuit Holds Action by Ex-Skater, Gold Medalist Is Barred by Res Judicata

Tuesday, May 1, 2018

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Ninth Circuit Holds Action by Ex-Skater, Gold Medalist Is Barred by Res Judicata

By a MetNews Staff Writer

Depicted is the cover of a DVD of the television special featuring a 1994 performance by Oksana Baiul ice skating, on tour.

Oksana Baiul, who was world figure skating champion at age 15 and an Olympic gold medalist the following year, has lost her bid in the Ninth U.S. Circuit Court of Appeals for a resuscitation of a dismissed action against NBC and others based upon use of scenes in a 1994 television special, “Nutcracker on Ice,” of her performances on tour.

District Court Judge Dean D. Pregerson of the Central District of California axed the action based on the res judicata effect of similar litigation in New York. The Ninth Circuit on Friday affirmed in a memorandum opinion.

Baiul, born in the Ukraine and now residing here, asserted in a Dec. 22, 2013 complaint filed in New York State Supreme Court for New York County that NBC and others have cheated her out of royalty payments. She alleged that in 1994—the year she won her gold medal at Lillehammer, Norway—she was “a minor who did not speak, read or understand English” and “was never provided a copy of her performance agreement.”

‘Inexcusably Meritless’

NBC removed the action to federal court. U.S. District Court Judge U.S. District Judge Katherine Forrest of the Southern District of New York dismissed the action on April 19, 2016, terming Baiul’s contentions “inexcusably meritless” and sanctioning her attorney in the amount of $50,000 for “wild claims.”

Prior to that dismissal, Baiul brought a new action in Los Angeles Superior Court—in June 2015—naming as defendants NBC Sports, a division of NBCUniversal Media, LLC, and Barry Mendelson and On Ice, Inc. (“OII”). Mendleson, through OII, in December, 1994, promoted a touring ice show in which Baiul was the featured skater.

The performance was recorded pursuant to an agreement between OII and NBC.

Baiul was not paid in connection with the TV film, which is now being sold on DVDs and via online downloading. She claimed entitlement to “no less than $10,000,000” in royalties.

That case was removed by NBC to District Court, and Preger- son on Oct. 21, 2016, ordered dismissal.

Oral Argument

San Francisco attorney Anna-Rose Mathieson, representing Baiul, on April 12 argued before a three-judge panel in Pasadena that the action filed here is not identical to the one that failed in New York. She maintained:

“As to NBC, under California’s primary rights theory, you look at the harm that caused the plaintiff the corresponding duty of the defendant. So here, Oksana’s second amended complaint, which is the one that the court below found precluded, she included claims such as violation of the right of privacy and publicity for advertising, which is a very distinct harm than the conversion theory.

“That is a separate harm to have your likeness and your image used for advertising to promote someone else’s cause than a simple breach of contract or fraud type issue that was at issue in the New York action.”

But the contention that the actions had different bases was not considered in Friday’s opinion. It notes that Baiul did not raise the issue before the district court or in her opening brief that there was not an “identity of claims,” so the issue was waived.

Ninth Circuit Judges Mary Murguia and Carlos Bea, joined by District Judge Stanley Allen Bastian of the Eastern District of Washington, sitting by designation, listen to arguments in the case of former figure skater Oksana Baiul who is seeking royalties for use of her performance in a 1994 television special.

Judgment Under Appeal

Baiul—who has become an actress and is starring in a movie, to be released next year, on the life of Norwegian skater and actress of the 1930s and 1940s Sonja Henie—also argued that Pregerson should not have given res judicata effect in 2016 to the New York judgment because it was then on appeal.

(Affirmance came Sept. 7, 2017. The Second Circuit Court of Appeals held that Baiul’s New York state law claims—for unjust enrichment, conversion, and accounting—the only claims remaining in her fourth amended complaint, “are preempted by the Copyright Act and, therefore, the district court properly dismissed the action.”)

Friday’s opinion cites precedent for the proposition that in federal court, a district court decision is “final,” even though it is being appealed, for purposes of res judicata.

The opinion adds:

“[T]he Southern District of New York held that each of Baiul’s claims were (1) preempted by the Copyright Act, and (2) insufficient to ‘state a plausible claim,’ as well as (3) time-barred. Thus, the Southern District of New York judgment was ‘on the merits’ twice over.”

Baiul contested Pregerson’s denial of her motion to remand the case to Los Angeles Superior Court, where she filed it in June 2015.

28 U.S.C. §1441(A) provides: “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”

However, §1446(b)(2)(A) adds: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”

Baiul argued that Pregerson erred in declining to remand the case because OII had not consented to removal. The judge denied her motion on the ground that she had not yet served OII at the time NBC removed the action to federal court, so its consent was not needed.

The Ninth Circuit opinion agrees, saying:

“Thus, at the time of removal, all defendants who had been ‘properly joined and served’—i.e., NBC only—‘join[ed] in or consented] to the removal of the action,’ which is all that §1446(b)(2)(A) requires.”

The case is Oksana Baiul v. NBC Sports, 16-56658.

Baiul has brought various other failed actions alleging injustices to her.